People v. Rosado
Decision Date | 13 February 1992 |
Citation | 583 N.Y.S.2d 130,153 Misc.2d 477 |
Parties | The PEOPLE of the State of N.Y., v. Edwin ROSADO, Defendant. |
Court | New York Supreme Court |
William Dowling, Bronxville, for defendant.
Assistant Dist. Atty., Tierney Carlos of Bronx County Dist. Attys. Office, for the People.
Defendant was indicted for the crimes of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree. At trial the People's case presented a typical "buy-and-bust" scenario wherein this defendant participated with another individual in the sale of heroin to an undercover police officer. 1 The sale took place in front of the apartment building in which defendant lived. The arrest of defendant and the other individual also took place at the same location within minutes of the transaction. After the People rested upon their direct case, defendant took the stand. He testified that on the date in question he was in his apartment with his ten-year old son who had returned home from school. He further testified that he left the apartment to buy soda for his son and, upon reaching the lobby, saw what he thought to be police activity directly in front of the building. He waited, smoked a cigarette in the lobby for some ten minutes to avoid the police activity, then proceeded to the sidewalk where he was arrested. The defense rested after defendant testified and the People rested immediately thereafter. A pre-summation conference concerning the charge was then held outside the presence of the jury, after which the case was adjourned until the following day. The next morning, immediately before summations began, the People moved to strike defendant's testimony as constituting an alibi for which no notice had been given, and, additionally, sought a missing witness charge with respect to defendant's son. The Court denied both applications for reasons set forth herein.
Alibi is a shorthand description for a defense that a defendant was elsewhere when the alleged offense took place. The Court finds that defendant's testimony does constitute an alibi defense in that he asserted that at the time of the commission of the crime charged he was at some place or places other than the scene of the crime. (C.P.L. § 250.20) Defendant's narrative placed him inside the apartment building, indeed, inside his apartment at the time the sale of heroin took place. No notice of alibi had been given.
New York's Criminal Procedure Law Section 250.20 requires that the defense provide the People with a "Notice of Alibi" within eight days of timely demand. Such notice must state where the defendant claims to have been at the relevant time. Along with other information, the name of "every such" witness to be used in establishing the alibi must be set forth. (emphasis added) (Compare, e.g., Florida Rules of Criminal Procedure [3.200], providing that upon failure of notice alibi evidence may be excluded "except the testimony of the defendant himself". [See, White v. State, 356 So.2d 56, 57 (Fla., 1978) ] Similarly, Pennsylvania Rules of Criminal Procedure [305(C)(1)(d) ]. [See, Commonwealth v. Fernandez, 333 Pa.Super. 279, 482 A.2d 567 (Pa., 1984) ] The Criminal Procedure Law provides for exclusion of alibi testimony of a witness not so listed. The Court in its discretion may receive such testimony, but must, upon proper application, grant the People an adjournment not in excess of three days.
The constitutionality of "Notice of Alibi" statutes providing for reciprocal disclosure has been upheld by the United States Supreme Court. (Wardius v. Oregon, 412 U.S. 470, 473-474, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82 [1973] In Williams v. Florida [399 U.S. 78, 81-82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970), cited in Taylor v. Illinois, 484 U.S. 400, 412, n. 17, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) ], the Supreme Court stated: .
In the instant case, New York's statutory "Notice of Alibi" rule conflicts with defendant's right to personally testify. This is a case of first impression under New York's current Criminal Procedure Law. 2 While the Court of Appeals addressed this issue in 1942 [People v. Rakiec, 289 N.Y. 306, 45 N.E.2d 812], a different statute was involved with language which does not appear in the Criminal Procedure Law. In Rakiec, the Court of Appeals resolved the conflict on statutory construction grounds and refused preclusion of a defendant's own testimony. In a unanimous opinion written by Judge Conway, that Court found that the 1935 passage of § 295-l of the Code of Criminal Procedure--predecessor of current C.P.L. § 250.20--did not supplant § 393 of that Code. Section 393, originally enacted in 1869 as ch. 678, in pertinent part provided, "The defendant in all cases may testify as a witness in his own behalf, ..." (emphasis added in Rakiec at 309, 45 N.E.2d 812) The Rakiec Court ruled,
The 1970 enactment of C.P.L. § 60.15 as successor to C.C.P. § 393 effected a noteworthy change. The new statute states, "A defendant may testify in his own behalf, ..." The legislature thus eliminated the significant phrase "in all cases" which the Court of Appeals had taken pains to emphasize in its holding in Rakiec, and, in doing so, called into question Rakiec's continued application. Even were Rakiec no longer applicable, however, this Court would reach the same result. This Court holds it constitutionally impermissible to enforce generally New York's "Notice of Alibi" statute against a defendant by precluding or striking a defendant's own testimony. (Walker v. Hood, 679 F.Supp. 372, 381 [SDNY, 1988], aff'd.854 F.2d 1315 [2d Circ., 1988] 3 [granting writ of habeas corpus where, based upon lack of notice, trial court in its charge instructed the jury to "disregard" defendant's own alibi testimony], citing Alicea v. Gagnon, 675 F.2d 913 [7th Circ.1982]; see, United States ex rel. Robinson v. McGinnis, 593 F.Supp. 175 [CD Illinois, 1984]; also, People v. Hampton, 696 P.2d 765 [Colo., 1985]; contra, State v. Burroughs, 117 Wis.2d 293, 344 N.W.2d 149 [1984].
It now is well settled that a defendant has the right to testify on his own behalf. Such right flows from the compulsory process clause of the 6th Amendment and the due process requirements of the 5th Amendment applied to the states through the 14th Amendment, and finds additional support in the 9th Amendment. This right applies not only to total preclusion, but also to restriction of the scope of non-cumulative, relevant testimony. (Walker v. Hood, supra, citing United States v. Bifield, 702 F.2d 342, 349 [2d Circ.], cert. den. 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 [1983]; Alicea v. Gagnon, supra ) "Where constitutional rights directly affecting the ascertainment of guilt are implicated, [a state evidentiary rule] may not be applied mechanistically to defeat the ends of justice." (Chambers v. Mississippi, 410 U.S. 284, at 302, 93 S.Ct. 1038, at 1049, 35 L.Ed.2d...
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